May 15, 2013

As reflected in some correspondence on the listservs, the Board has embarked on an initiative to classify and cap many cases. Everyone is certainly aware that the rate of classification has plummeted since 2007. It has been the assessment of most claimant attorneys that their clients were better served by avoiding classification. Meanwhile, carriers have not pursued classification for reasons that are best known to them, but which presumably include the ATF deposit requirement.

The result has been a substantial backlog of cases that would have been classified in years past. Clearly the Board is under pressure to “fully implement the 2007 reforms,” and that seems to be reflected in the current initiative.

There are certainly many good arguments to be made about whether this is the proper role of the Board. In the near term, however, the fact remains that the cases are going to come on calendar and that the judges will attempt to push them to a conclusion.

That will in turn raise the looming question of the appropriate standard for measuring loss of wage earning capacity. It seems clear that most of the determinations that have been made about that issue continue to rely heavily on the (obsolete) 1996 Guidelines, and largely disregard the instruction of the 2012 Guidelines. Where the issue goes from here will depend on whether a consensus develops and how vigorously the arguments are advanced.

An article on the subject was published today in the Syracuse Law Review. The citation is The Use of Medical Impairment, Functional Loss and Vocational Factors to Determine Loss of Wage Earning Capacity Under the 2012 Guidelines for Permanent Impairment, Grey, 63 Syracuse Law Review Vol. 3, p. 363, 2013.

The article is being distributed to WCL Judges throughout the state, and a copy is attached for your consideration.